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LSO seeks feedback on shrinking governing body

Rebecca Durcan says that, in the course of her work, she sees ‘there is a lot more distrust on the whole concept of self-regulation.’ Photo: Robin Kuniski

The Law Society of Ontario is moving ahead with looking at whether the regulator should shrink the number of benchers and phase out some members, according to a recent report to Convocation from the Governance Task Force.

The law society is considering changes that could include a smaller Convocation size and changing the terms and term limits for benchers, the report said.

The regulatory body has 90 members and benchers may serve up to three four-year terms.

“The big issue that the law society is quite appropriately looking at is the size. Because, practically, that’s a huge group to deal with,” says Rebecca Durcan, a professional regulation lawyer who practises as a partner at Steinecke Maciura LeBlanc in Toronto.

Durcan was recently elevated to the position of bencher to fill the position that opened when Bencher Malcolm Mercer was elected as treasurer.

“I’ve yet to have a full meeting,” she says. “But I’m sure it will take time to hear all those voices and to hear all those perspectives. So there’s the question, ‘What is the sweet spot between ensuring we get enough voices . . . and not making it too burdensome or too top-heavy?”

The proposals follow trends in the professional regulation industry, where boards are becoming nimbler and including a stronger public presence, says Durcan.

“In my job, I see the privilege of self-regulation and how that privilege is being whittled away. There’s a lot more distrust on the whole concept of self-regulation,” says Durcan, who spoke on her own behalf, not on behalf of Convocation.

The report, released on Aug. 9, includes several example alternatives to the law society’s current structure, which are premised on the idea that some of the LSO’s “ex-officio” benchers, who already have limited privileges, would be phased out by 2023.

Convocation, where the law society’s directors meet, now has 90 members, the report said.

That includes 45 elected licensees, including 20 lawyers from Toronto, 20 lawyers from outside Toronto and five paralegals.

It also includes eight lay benchers, who are appointed, the treasurer, the current attorney general of Ontario and ex-officio benchers, such as former treasurers, life benchers and former attorneys general who held office up to 2010.

When Law Times asked Mercer’s opinion on whether the task force’s proposals would promote effectiveness and efficiency, he said he would wait for the consultation process before he reached any views himself, and he said that Convocation has to make the ultimate decision.

“It’s difficult, of course, with that many people to have everyone participate in a genuinely engaged way to hear all the perspectives. It can sometimes be difficult to reach conclusions, and frankly, it’s difficult to involve all of those people constructively in roles within the law society,” Mercer says. “On the other hand, a larger number allows for different perspectives to be brought to bear.”

The law society will accept comment until Oct. 15, the report said.

David Howell, a business lawyer at ESB Lawyers LLP in Hamilton, Ont., says that, while he agrees with some of the suggestions to shrink Convocation, it’s better to focus on an evolution rather than making sweeping changes. For instance, Howell says, Convocation needs a certain number of experienced benchers to fulfil all the board and committee responsibilities, and having more frequent elections or too few benchers might create a heavier workload for those that remain.

“A reduction in principle is a good idea,” Howell says.

“But what needs to be remembered . . . is Convocation really has two functions. One function is it sort of sits as a corporate board, the way you might have for a business corporation, where those boards might have 10 to 15 people. But it also sits as a policy-making body, kind of like a parliament. When it is sitting as a policy-making body, it’s important that the Convocation reflects the different interests of members across the provice to properly do its job.”

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